Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-02-04

lee WutH the COntlngency upon winch
the first estate will expire comes within
the rules agsinst perpetuities, and under
the rule laid down in thst case By Judge
Willie, the residusry devisee in this case
would take fee simple subject to DE de
fested by his death without leaving issue
and pass to the heirs of the testator; and
this fee simple estate under the statute
would vest imme dlately upon the death
Of the testatOr.
Article 1853 of the Revised Statues per-
mits tesla or TO dispose Of his property
by will "subiect to the limitations pre-
scribed by law" Are the limitation and
restrictions created by and contained in
the trust provided for in certain clauses
of the will and codiciI, such as the law
permits to be coupled with the use and
enjoyment Of vested fee simple estate,
such as the residuary devise has in this
case?
Article 1874 of the Revised Statutes
provides That the husband or wife may
by last will and testament give to The
survivor of the marriage the power to
keep his or her separate property to-
ge'her until each of the several heirs
shall become OF lawful age, and to man
age and control the same under the pro-
visions of law relating to community
property, and such other restrictions as
shall be imposed by such will, provided,
the surviving husband or wife is the
father or mother, as the case may be, of
the minor heirs; and provided further,
that any child or heir entitled to any part
OF said property, shall at any time, upon
becoming of age, be entitled to receive
his distributive portion of said estate.
There are no decisions in our state de-
Gliding this question and it is only by in
terpreting the public policy of our state
as indicated by the statutes in the light of
the common law and authorities ana de-
cisions of other states that it can be de-
termined.
The statute above quoted inhibits the
limitations of the enjoyment and use of a
vested fee simple estate, by the creation
of trust simply for the purpose Of man
aging and controlling the estate, if such
trust Is contlded to the marital survivor,
after the owner of the fee simple attains
majority. If such trust created in the
natural parent Of the heir would
be against public policy, can see no
reason why the creation of such trust in
stranger would not be equally against
public policy, as the intention Of the law
maker was evidently to follow out the
common law rule ami prevent limitations
and restrictions that would be repugnant
to and Inconsistent with the enjoyment
of fee simple estates.
The words il this will and cudicfl do
not convey any estate whatever to the
trustees, but provide that he residuary
devisee shall take the estate, but that the
same shall be held, managed and con-
trolled by the trustees.
1t is admitted that Peter McClelland, |
Jr., is OF sound mind and twenty one
years Of age and sole heir of the testator.
| think the will vests fee simple estate |
in him, and that the limitations and re-
striCtiOns on its use and enjoyment are |
against public policy and void, and that
the trust being created only for the pur.
pose OF carrying out these unlawful limi-
tatiops is void, and that the residuary de-
visee is entitled to the immediate posses
sion, use and enjoyment of the residuary
estate OF the teststOr, and Judgment will |
be entered up declaring invalid and mop
erative the trusts, limitations and restric-
tions provided for in said will and codiciI. |
VIM, W. Evans,
County Judge of McLennan county.
Iue flTluaI tutCI OF IllS decision is TO !
vest the entire estate Community inter
est excepted) in Peter McCielland, son OF
the testator. It is anticipated, of course,
that the trustees (Messrs. Prather and
GilberD will appeal and the case 60 to
the District court, where it Will be tried
by a jury. 1t is possible that it may 90 !
from the District to the state Suprt me
court. In the meantime, by appointment
Of the court, Mrs. Joanna McClelland,
widow of the testatOr, continues in charge
Of the property as temporary adminlstratix.
Thus far the contest is in favor OF young
Peter McClelland, and it is plain to see
That the fact affords qualification to the
public. OF course, there is no question
As TO the propriety of the course pursued
by the trustees in endeavoring tc carry
out the provisions Of the trust. They do
not come under criticism, but the pre-
of opinion in this community
5 to the effect that the will was harsh
md unnatural; that the son ought to
nave that he is striving for, aud there is
| very general hope that he will get it.